McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montr6al
Volume 28 1983 No 4
The Canadian Charter of Rights and Freedoms and the United States Bill of Rights: A Comparison
Paul Bender*
Although formal constitutional provisions are not exhaustive of the individual rights enjoyed by citizens of Canada or of the U- nited States, a comparison of the new Cana- dian Charter and the United States Bill of Rights is illuminating. After discussing cer- tain general topics relating to the scope of protected rights, including the requirement of governmental action, the assertion of affirmative rights and the degree of protec- tion offered to victims of the incidental effects of discrimination, the author under- takes a comprehensive cataloguing of rights protected by the relevant United States and Canadian provisions. He concludes that, in broad outline, the list of rights textually pro- tected in each country is similar, but that
M~me si les droits dontjouissent les citoyens du Canada et des Etats-Unis ne se limitent pas aux termes de dispositions constitution- nelles formelles, une comparaison de la Charte canadienne et du Bill of Rights des Etats-Unis est rdvelatrice. L'auteur examine certaines questions d'ordre gfndral se ratta- chant h l'6tendue des droits prot6g6s, y compris la nfcessit6 d'interventions gouver- nementales, la revendication de droits posi- tifs et le degr6 de protection offert aux vic- times des effets indirects de la discrimina- tion. L'auteur dresse ensuite un inventaire complet des droits expressfment protdg6s par les constitutions du Canada et des Etats- Unis, et conclut g6nfralement que quoique les degrfs de protection ainsi offerts sem-
*Of the School of Law, University of Pennsylvania. The author first became interested in the Canadian Charter of Rights and Freedoms and its relationship to the U.S. Constitution while teaching at the summer course in human rights sponsored by the Canadian Human Rights Foundation and held for the past four years at the University of Prince Edward Island. This article is based upon lectures on the U.S. Bill of Rights that have been delivered in connection with that course. A special debt is owed to the P.E.I. students and faculty and to Professor John P. Humphrey, of the McGill University Faculty of Law, the guiding spirit of the P.E.I.
program.
Some of the ideas in this article were further developed during the author's appointment as a visiting lecturer at the University of Alberta Law School during January 1983. The author wishes to acknowledge the wonderful hospitality of the faculty, staff and friends of that school, with special thanks to Dean Frank D. Jones, and Mr Justice David C. McDonald.
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there are distinctions which may be of im- portance, depending upon the approach taken ultimately by the Canadian judiciary.
For example, the Charter seems to provide greater opportunities to assert collective minority rights than does the U.S. Bill of Rights. On the other hand, the Charter does not prohibit the "establishment" of religion, nor does it protect property rights explicitly.
Drawing upon the wealth of United States case law, the author suggests potential diffi- culties for Canadian courts grappling with the Charter, and he points to some possible solutions that have been devised by U.S.
courts dealing with similar problems.
blent similaires, certaines divergences entre les textes pourraient s'av6rer importantes se- Ion l'approche dventuellement prise par les tribunaux canadiens. Par exemple, Ia reven- dication de droits collectifs semblerait plus ais6e sous l'empire de ]a Charte que du Bill ofRights. En outre, la Charte ne prohibe pas l'appui de croyances religieuses par l'Etat et ne protege pas explicitement les droits de propri6t6. S'inspirant d'une jurisprudence abondante aux Etats-Unis, l'auteur fait dtat de certaines difficult6s d'interpr6tation dans ]a Charte, et signale quelques-unes des solu- tions inventdes par les tribunaux des ttats- Unis face A des probl~mes semblables.
Synopsis Introduction
I. The General Scope of Rights Under the Charter and the U.S.
Constitution
A. "Negative" vs "Affirmative" Rights B. The Requirement of Governmental Action
C. When Are Rights Violated: Direct Interferences vs Practical Effects
II. Specific Charter Rights and their U.S. Counterparts A. Legal Rights
B. Due Process in Civil Proceedings
C. "Substantive" Due Process and the Right to "Privacy"
D. Equality Rights E. Mobility Rights
F. Rights of Religion, Conscience, Free Expression, and Association
Conclusion
* * *
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Introduction
The United States has, for many years, afforded significant constitution- al protectionI to a broad range of individual political, civil and personal rights. These rights have been a prominent aspect of government in the U.S.
The constitutionally protected rights and freedoms of U.S. residents are, indeed, often cited as one of the main positive factors that distinguish life in the U.S. from that in other countries.
U.S. constitutional rights are ordinarily enforceable through the courts.
Judicial enforcement has become inextricably intertwined with the U.S.
system of constitutional rights and is essential to the strength and quality of U.S. rights in their present form. Judicial enforcement has, however, also been a source of deep controversy in the U.S. as the courts have, from time to time, seemed to play an unusually active role regarding important and widely debated issues of social policy that are more often left to legislative resolution in other democratic nations.
Now that Canada has adopted a Charter of Rights and Freedoms with constitutional status 2 and provided explicitly, as well, for judicial enforce- ment of those rights3 - it seems natural to compare the two systems. Are the protections for rights offered by Canada's new Charter basically similar to the protections that have existed in the United States? Where significant differ- ences exist, what, if anything, do those differences suggest about the relative scope and strength of the constitutional protections of individual rights in the two countries? Will the Canadian judiciary come to play a role regarding questions of social policy similar to that which the U.S. courts have some- times seemed to assume? This article and a subsequent one will seek to compare some of the main features of the new Canadian Charter with corresponding aspects of the protection of rights under the U.S. Constitution in an attempt to provide a background for addressing these interesting ques- tions.
I "Constitutional protection" is used here to refer to guarantees of individual rights that are
"entrenched" in a formal constitutional document. Unlike common law or statutory rights, constitutionally protected rights cannot be diminished or eliminated by ordinary legislative action, but only through a specified amendment process. The amendment process applicable to the Canadian Charter is spelled out in Part V of Schedule B, Canada Act 1982, 1982, c. 11 (U.K.). The amendment procedures for the U.S. Constitution are in art. V of that document.
2Part 1 of Schedule B, Canada Act 1982, 1982, c. I1 (U.K.) [hereinafter the Charter].
Paragraph 52(2)(a) states that the Charter is "the supreme law of Canada". Any law inconsis- tent with it "is, to the extent of the inconsistency, of no force or effect" (subs. 52(1)).
'See the Charter, subs. 24(1).
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A Clarification and Caution - At the outset of such a comparison, it is appropriate to insert some preliminary words of clarification and caution about the nature and significance of the task at hand.
In comparing the U.S. and Canadian systems, it is tempting to focus primarily, or even exclusively, upon the two relevant constitutional texts. In the case of the Charter, its text is, unquestionably, the proper main focus.
Having come into effect just over a year ago (on 17 April 1982), that document is as yet unadorned by binding judicial interpretations in the Supreme Court of Canada.4 The U.S. text,' on the other hand (the most
4However, judicial interpretations under the Canadian Bill ofRights, R.S.C. 1970, Appen- dix I, while not dispositive of the meaning of similar Charter provisions, may nevertheless be relevant as Canadian courts begin to constue the Charter. See Hovius, The Legacy of the Supreme Court of Canada's Approach to the Canadian Bill ofRights: Prospectsfor the Charter (1982) 28 McGill L.J. 31. For general background on the Supreme Court's interpretations of the Bill of Rights, see, e.g., W. Tarnopolsky, The Canadian Bill of Rights, 2d rev. ed. (1975);
Tarnopolsky, "A New Bill of Rights in the Light of the Interpretation of the Present One by the Supreme Court of Canada" in The Constitution and the Future of Canada [1978] L.S.U.C.
Special Lectures 161; P. Hogg, Constitutional Law in Canada (1977); Gibson, -And One Step Backward: The Supreme Court and Constitutional Law in the Sixties (1975) 53 Can. Bar Rev.
620; and Berger, The Supreme Court and Fundamental Freedoms: The Renunciation of the Legacy of Mr. Justice Rand (1980) 1 Supreme Court L.R. 460.
Some Charter provisions are also similar to provisions in the constitutions of countries other than the U.S., in international documents such as the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights, United Nations G.A. Res.
2200, 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1967), reprinted in (1967) 6 I.L.M. 368; the European Convention for the Protection of Human Rights and Fundamental Freedoms, European T.S. No. 5 (signed 4 November 1950; entered into force 3 September 1953); and the American Declaration of the Rights andDuties ofMan, Res. XXX, O.A.S. Off.
Rec. OEA/Ser. LIV/I.4 Rev. (1965). Interpretations of these provisions by national supreme courts and by bodies such as the European Court of Human Rights are also of potential relevance in construing the Charter.
-Although the term "Bill of Rights" is commonly used to refer to all U.S. constitutional protections for individual rights, the usage is not technically accurate. Strictly speaking the
"Bill of Rights" was the first group of Amendments to the U.S. Constitution. The Constitution dates from 1789; these Amendments were adopted in 1791. Some of the most important U.S.
individual rights provisions can be found in these 1791 amendments. See, for example, the protections for the freedoms of speech and religion (First Amendment); the restriction on unreasonable searches and seizures (Fourth Amendment); the prohibition on compelled self- incrimination (Fifth Amendment); and the prohibition upon cruel and unusual punishments (Eighth Amendment). As originally adopted, however, these Amendments did not apply to the U.S. states (or to local governmental units established under state authority), but constituted limits only upon the newly formed federal government. See Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243 (1833). It has only been through a gradual process of
"selective incorporation" into the due process clause of the Fourteenth Amendment (adopted in 1868, shortly after the U.S. Civil War) that most of the provisions of the original 1791 Bill of Rights have ultimately come to be applicable to state and local governments in the U.S. See, e.g., Palko v. Connecticut, 302 U.S. 319 (1937); and Duncan v. Louisiana, 391 U.S. 145 (1968). For more on this process of incorporation, see infra, note 19.
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important parts of which date from either shortly after the original U.S.
Constitution of 1789 or shortly after the U.S. Civil War of the 1860s), has been subjected to an enormous amount of authoritative judicial interpretation.
These decisions and opinions often deal with questions on which the U.S.
constitutional text is completely or almost entirely silent, and they also give meanings to U.S. provisions that could hardly be confidently anticipated - or in some cases anticipated at all - by a reading of the relevant text. In the case of the U.S. Constitution, then, primary attention must be focused not on the bare text, but on the text as it has been authoritatively interpreted in the Supreme Court of the United States.
In comparing the Charter with the U.S. Constitution, therefore, one is, to some extent, comparing apples with oranges - the comparison being between a bare Canadian text, at the beginning of its life, and an elaborate and complex system that has been intricately worked out over the years by U.S.
courts. Moreover, the text of the Canadian Charter, like that of the U.S.
Constitution, is quite general in nature; it, too, will undoubtedly undergo a process of repeated judicial interpretation before the answers to many fun- damental questions begin to emerge. When we "compare" today's Charter with U.S. constitutional rights, therefore, we will often more accurately not be "comparing" at all, but rather speculating on what the Charter may come to mean, while using the resolution of similar issues under the U.S. Constitution
as a point of reference and, where it seems appropriate, as a guide.6
Individual rights provisions also appear in the body of the original 1789 Constitution.
Provisions in that document, for example, prohibit either the federal government or the states from enacting expostfacto laws or bills of attainder (art. I, §9, cl. 3; art. I, §10, cl. 1); prohibit the states from impairing the obligation of contracts (art. I, § 10, cl. 1); and guarantee jury trials in federal criminal prosecutions (art. III, §2, cl. 3). Additionally, some of the most significant U.S. individual rights protections are contained in constitutional amendments adopted after the Bill of Rights. Most prominent today is the Fourteenth Amendment, which contains two of the currently most important U.S. provisions- that states shall not deprive persons of life, liberty or property without "due process of law", or deprive persons within their jurisdiction of the
"equal protection of the laws". In addition to serving as the vehicle for applying the 1791 Bill of Rights to the states, the due process clause also had independent significance as a protection for liberty and property, and a vast jurisprudence has, of course, also developed in connection with Fourteenth Amendment equal protection guarantees. Other Civil War and subsequent amend- ments also contain important individual rights protections. See, for example, the Thirteenth Amendment (1870) (prohibiting slavery); the Fifteenth Amendment (1870) (prohibiting racial discrimination in voting); the Nineteenth Amendment (1920) (gender discrimination in vot- ing); and the Twenty-Fourth (1964) and Twenty-Sixth (1971) Amendments (outlawing the poll tax in federal elections and prohibiting age discrimination in voting for persons over eighteen).
This article treats all of these U.S. constitutional protections, not just those in the 1791 "Bill of Rights".
6As noted supra, note 4, U.S. interpretations and solutions are by no means the only relevant comparative decisional materials.
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The caution that should be interposed is this: Although national constitu- tions unquestionably play an important role in determining the level of respect for individual rights in a nation, their role is by no means exclusive. Neither the Canadian Charter nor the U.S. Constitution represent the only - or even the primary - protections for individual rights in their respective countries.
Both nations protect rights extensively through the common law, and through national, provincial, state, and local legislation. Rights may also be protected through adherence to international treaties and, in the U.S., under State constitutions, provisions of which were the model for the original U.S. Bill of Rights and which have continued to play an important role in some areas.
Indeed, both the Canadian Charter and the U.S. Constitution make absolutely clear that the federal constitutional protections they embody are not intended
to preclude the application of other sources of rights .'
The Charter and U.S. Constitution thus represent national minimum protections of individual rights. Comparing such constitutional protections is emphatically not equivalent to comparing the actual status of individual rights in Canada and the U.S. as a whole, or within a particular state or province.
Rights weakly protected through a national constitution, or not protected at all by that constitution, may not need to be protected - given national traditions and prevailing societal attitudes and practices - or they may be protected by other sources of law. In the U.S., for example, most federal constitutional provisions, as we shall see, apply only as against "governmental" action.
There is, however, an extensive body of federal and state legislation prohibit- ing similar private violations, such as private racial or gender discrimination in employment or housing. In the U.S. there are also presently few, if any, affirmative constitutional entitlements, such as to public assistance or medi- cal care for the indigent. Legislatively created rights to these benefits are quite common, however. On the other hand, drafters or interpreters of constitutions may be motivated to state or develop strong constitutional protections largely because other mechanisms have not proved satisfactory in practice. To take another U.S. example, it is likely that the judicial development of the
"exclusionary rule" (excluding the fruits of unconstitutionally obtained evi- dence from criminal trials) was influenced heavily by the failure of other, non-constitutional mechanisms (such as private tort actions and criminal prosecutions) adequately to control police misbehavior.
Three Modes of Comparison: The Scope, Strength and Enforceability of Rights - In comparing the quality and character of the protection of indi-
7See the U.S. Constitution, Amendment IX: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". See also the Canadian Charter s. 26: "The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada."
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vidual rights under different constitutions, three important subjects need investigation. First, it is necessary to examine the catalog of rights that enjoy protection under each constitution. Does each constitution, for example, protect freedom of speech? Does each protect the rights of defendants in criminal proceedings? Is there protection for "property" rights? Are certain kinds of discrimination or unequal treatment prohibited? Does the constitu- tion in question confer any "affirmative" rights, such as mandatory entitle- ments to welfare, employment or public education? When rights are within the constitutional catalog, against whom do they apply? If there is a constitu- tional right to be protected from racial discrimination, for example, does that include a right to be protected from private discriminatory behavior, or only from governmentally imposed racial discrimination?
Once the applicable constitutional rights are identified, a second vital question - less obvious, perhaps, but at least equally important in the long run - has to do with the level or strength of the protection that is afforded to rights under each constitution. Some constitutional rights may perhaps be absolute, admitting of no interference or impingement, no matter how strong the asserted governmental justification. Under the U.S. Constitution, for example, the right to be free from governmentally compelled self- incrimination and the prohibitions upon the establishment of national and state religions probably fall into this category. A large number of important U.S. constitutional rights, however, do bow to sufficiently strong gov- ernmental justifications, and among these are some of the most well recog- nized and fundamental of rights, such as the freedoms of expression and religion.
Once a right is thus established as what might be called a qualified, rather than an absolute, right, the critical question concerns the strength of the justification requirement that the applicable constitution imposes as a condi- tion of governmental interference. This requirement may be so strong as to make the right virtually absolute; on the other hand, a justification require- ment may, if weak enough, result in no effective constitutional protection at all. And there is, of course, a large middle ground; the variety of possible standards of justification for permissibly impinging upon constitutionally protected interests is almost infinite. In the United States, for example, some constitutionally protected interests may be overridden by regulations that are found merely to be conceivably relevant to "legitimate" governmental in- terests; in other areas, regulations must be shown to be "substantially" related to "important" governmental concerns; in still other areas, rights may be restricted only upon a demonstration that doing so is "necessary" to serve
"compelling" governmental interests.
The third important area for inquiry has to do with the available means for enforcing rights. The most prominent questions here concern judicial 19831
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enforcement. In what circumstances is judicial enforcement available? What sorts of remedies, such as damages, injunctions, exclusion of evidence, and declaratory judgments, will courts afford? Do doctrines exist that permit or require courts to decline to enforce rights, even when they are violated without sufficient justification, or that permit legislatures to forbid or prevent courts from enforcing rights in some circumstances? Even the strongest of rights will lose much (although certainly not all) of their strength when no judicial enforcement is available and when resort must be had to more informal or political remedies.
These three topics cover an enormous range. The present article restricts itself to the first of these subjects. It undertakes a comparison of the individual rights interests afforded at least some protection under the Canadian Charter and the U.S. Constitution. A subsequent article will consider the remaining two questions: the relative strengths of rights vis-d-vis asserted governmental justifications in the two systems, and the availability of judicial enforcement of rights under each system.
I. The General Scope of Rights Under the Charter and the U.S.
Constitution
The lists of individual rights afforded protection under the Canadian Charter and the U.S. Constitution bear a great deal of similarity. Both constitutional texts, for example, protect explicitly the freedoms of expres- sion and assembly,8 and the freedom of religion.9 Both texts expressly protect a range of important rights of defendants in criminal proceedings, including the rights to counsel and jury trial,'0 and protection against arbitrary or unreasonable searches and arrests," compulsory self-incrimination,2 cruel and unusual punishments, 3 ex postfacto laws,4 and double jeopardy.'5 Both constitutions also offer protection against certain forms of discriminatory treatment.'6 The text of the Canadian Charter, in addition, offers explicit protection to mobility rights,7 to the rights to vote in federal and provincial
'Charter, subss 2(b) and 2(c); U.S. Constitution, Amendment I.
9Charter, subs. 2(a); U.S. Constitution, Amendment I.
"0Charter, subss 10(b) and 1 (f); U.S. Constitution, Amendment VI, and art. III, §2, cl. 3.
"Charter, ss 8 and 9; U.S. Constitution, Amendment IV.
"Charter, subs. 11(c); U.S. Constitution, Amendment V.
"Charter, s. 12; U.S. Constitution, Amendment VIII.
"Charter, subs. I 1(g); U.S. Constitution, art. I, §9, ci. 3; art. I, §10, cl. 1.
"-Charter, subs. 11 (h); U.S. Constitution, Amendment V.
16Charter, s. 15; U.S. Constitution, Amendment XIV, §1.
"1 Charter, s. 6.
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parliamentary elections and to the right to be a candidate in such elections.18 These rights are not explicit in the text of the U.S. Constitution, but a number of Supreme Court decisions show that they do, in fact, receive a substantial degree of federal constitutional protection in the United States."
"Charter, s. 3.
9 See, e.g., Edwards v. California, 314 U.S. 160 (1941); Shapiro v. Thompson, 394 U.S.
618 (1969); and United States v. Guest, 383 U.S. 745 (1966) (mobility rights); Harper v.
Virginia State Board of Elections, 383 U.S. 663 (1966); and Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969) (voting); Williams v. Rhodes, 393 U.S. 23 (1968) (candidacy).
Several constitutional textual bases have been suggested in the cases for the U.S.
protection of rights of mobility and travel. These include the U.S. due process clauses (prohibiting federal or state deprivations of "liberty" without "due process of law"); art. V, §2, cl. 1 ("the citizens of each state shall be entitled to all privileges and immunities of citizens in the several States"); the "privileges or immunities" clause of the Fourteenth Amendment ("no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"); and the "commerce clause" of art. I, §8, cl. 3 ("the Congress shall have power ... to regulate commerce ... among the several States").
Most U.S. voting and candidacy cases rely on equal protection principles. See, in addition to the cases cited above, San Antonio School District v. Rodriguez, 411 U.S. 1 (1973). Other relevant U.S. constitutional provisions in these areas are the First Amendment (protecting the freedoms of speech, press, assembly and petition, and sometimes seen as protecting political activity generally); the Fifteenth, Nineteenth and Twenty-Sixth Amendments (prohibiting discrimination in voting on account of race, gender or age); the Twenty-Fourth Amendment (prohibiting poll taxes in federal elections); art. I, §2, cl. 1 and the Seventeenth Amendment (providing that the House of Representatives and Senate shall be chosen "by the people"); and art. IV, §4 (providing that the United States "shall guarantee to every State... a Republican form of government").
Close scrutiny of the U.S. constitutional provisions cited in this and the preceding footnotes will create some doubt in the reader's mind about whether it is strictly accurate to say, as the text implies, that the rights mentioned in the paragraph are, in fact, generally applicable in the U.S. to all governmental action, whether under federal or state authority. For example, the U.S. First Amendment, the primary textual basis for constitutional expression and religious rights, provides that "Congress shall make no law" interfering with speech or the free exercise of religion [emphasis added]. And although the U.S. Fourth, Fifth, Sixth, and Eighth Amend- ments (the primary textual bases for most of the rights of defendants in criminal proceedings) do not contain this explicit textual limitation to acts of the federal Congress, the Supreme Court authoritatively held, in Barron v. The Mayor and City Council of Baltimore, supra, note 5, 249, that all of the first eight Amendments were, like the First Amendment, intended solely as
limitations "on the exercise of power by the government of the United States, and [are] not applicable to the legislation of the states". A converse textual problem applies to the equal protection clause of the Fourteenth Amendment, which is in terms applicable only to "state"
action. (Other rights provisions, such as the Fifteenth, Nineteenth, Twenty-Fourth and Twen- ty-Sixth Amendments are, however, expressly made applicable to action by "the United States or by any State". See also art. I, §9, cl. 3 and art. I, § 10, cl. 1, prohibiting expostfacto laws by the federal and state governments, respectively).
In fact, the implication in the text, that the rights mentioned are applicable to both state and federal governments in the U.S., is generally correct. This result has been reached through construction of the "due process" clause of the Fourteenth Amendment. Over the years after the adoption of the Fourteenth Amendment, the free expression and religion guarantees of the First 19831
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Although there is thus a broad range of basic similarity between the rights protected under the Charter and the U.S. Constitution, there appear to be some significant differences in coverage as well. The official languages and minority language educational rights in the Charter,"0 for example, have no apparent U.S. counterparts, in either text or judicial decision.', Nor does the U.S. Constitution contain any general principle resembling that contained in s. 27 of the Charter, which requires that the Charter be interpreted "in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians". On the other hand, the Charter contains no prohibi- tion, as does the U.S. First Amendment, upon governmental "establishment"
of religion. Nor does the Charter explicitly protect property rights to the extent found in the U.S. constitutional text. The U.S. due process clauses, for example, apply to deprivations of "life, liberty, or property",2 whereas the corresponding language in the Charter covers deprivations of "life, liberty and security of the person".? The U.S. Fifth Amendment, moreover, pro- vides that "private property" shall not "be taken for public use, without just compensation" and the original Constitution provides further that states shall not enact laws "impairing the obligation of contracts".24 The Charter contains no directly equivalent provisions.
In addition to these evident textual differences, there appear to be other significant differences as well, due to the fact that the U.S. Constitution has, through judicial interpretation, come to embrace some rights that are not at all
Amendment were gradually made fully applicable by the U.S. Supreme Court to state and local governmental action through "incorporation" of those guarantees into the due process clause of the Amendment, which applies to "state" action. See, e.g., Gitlov v. New York, 268 U.S. 652 (1925); Palko v. Connecticut, supra, note 5; and Everson v. Board of Education, 330 U.S. 1 (1947). The same process occurred with regard to most of the criminal procedure guarantees of the Fourth, Fifth, Sixth, and Eighth Amendments. See Duncan v. Louisiana, supra, note 5. In the opposite direction, the equal protection guarantee of the Fourteenth Amendment has been effectively "incorporated" into the due process clause of the Fifth Amendment, which applies to federal governmental action. See Bolling v. Sharpe, 347 U.S. 497 (1954).
10Charter, ss 16 to 23.
2' But see Lau v. Nichols, 414 U.S. 563 (1974), suggesting possible U.S. constitutional objections, on grounds of equal protection, in a situation where a public school system offered education only in the English language, but where a substantial number of students in that system did not speak English and were not offered supplemental remedial instruction in English.
2These clauses appear in the Fifth and Fourteenth Amendments, the former applicable to federal governmental action, the latter to state action [emphasis added].
Charter, s. 7 [emphasis added].
2NArticle I, § 10, cl. 1. Nor does the Charter appear to protect "the right of the people to keep and bear arms" (in the U.S. Second Amendment) or limit the right of government to use private homes to quarter soldiers (Third Amendment). These rights have not been important ones in judicial applications of the U.S. Constitution, although the right to bear arms is often invoked in political debates concerning gun control legislation in the U.S.
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apparent in the constitutional text. Chief, perhaps, among these potential differences, is the quite recently developed U.S. right to "privacy" - the right responsible, for example, for the 1973 decision of the U.S. Supreme Court that most abortion prohibitions are unconstitutional. 5 The Canadian Charter has no provision clearly embodying this privacy right, although it may emerge ultimately in the course of judicial interpretation, as it has in the U.S. United States law also contains a general principle of "substantive" due process, requiring that all regulations impinging upon liberty and property be, to some degree, "reasonable" in light of some legitimate government policy,6 and a similar general "rationality" requirement for governmental classifications that has been developed under the equal protection clause of the Fourteenth Amendment.27 These are relatively weak rights at the present time, but they have some theoretical and practical significance. It is not clear whether - or to what extent - either of these general rationality rules will be recognized under the Charter.
Before exploring, in greater detail, some of the most important potential similarities and differences in the catalogs of rights protected under the Charter and U.S. Constitution, it is useful to consider three general topics concerning the scope of protected rights that are relevant in examining the breadth of all of the rights covered by the two documents.
"Roe v. Wade, 410 U.S. 113 (1973). See also Griswold v. Connecticut, 381 U.S. 479 (1965) (contraceptive use by married persons protected by a similar principle). The U.S.
privacy right also applies, in some circumstances, to "informational" privacy, i.e., to situations where the government seeks to collect or disseminate data about "private" behavior without directly regulating that behavior. See Whalen v. Roe, 429 U.S. 589 (1977).
"6The degree of judicial review of reasonableness has varied considerably under this doctrine over the years. Compare the relatively substantial level of review indicated in Lochner v. New York, 198 U.S. 45, 56 (1905) ("Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?") with the extremely low level of review suggested by the currently applicable standard of Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488 (1955) ("It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. The day is gone when this court uses the Due Process Clause... to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought").
"As with the substantive due process rule of rationality, the equal protection rationality standard has varied in its strength over the years. Compare the relatively substantial test of F.S.
Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) ("The classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike") with the much more permissive standard of Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110 (1949) (a legislative classification is reasonable if the local authorities "may well have concluded" that it responded to the legislative concern).
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822 McGILL LAW JOURNAL [Vol. 28 A. "Negative" vs "Affirmative" Rights
Individual rights under the U.S. Constitution are generally "negative"
rather than "affirmative" in nature. United States constitutional rights, that is, are ordinarily rights to be free from restrictions on individual freedom and autonomy, rather than rights to affirmative entitlements from government or other individuals. Take, for example, the right of free expression. In the U.S.
this right clearly does not include a right to demand the financial resources that would be required to engage in a desired level of public communication of ideas - to the resources necessary to publish and distribute a tract or newspaper, for example, or to establish and run a radio or television station, or to rent an arena for a public meeting. Rather, the free expression right in the U.S. is the right, absent a sufficiently strong governmental justification, to be free from governmental prohibitions or restrictions upon expressive activi- ties, assuming that the individual otherwise has the wherewithal to engage in them. Similarly, the abortion right recognized by the U.S. Supreme Court in 1973 is a right to be free from governmental prohibitions of certain abortions - it is not a right to financial support for the costs of abortion, even for those otherwise unable, for financial reasons, to obtain the desired abortion procedure.28 The right to interstate mobility in the U.S. is likewise a right to be free from governmental interference with travel or migration - not a right to the resources necessary to permit one to move or to travel.
Many United States rights are actually expressed in the U.S. constitu- tional text in this negative fashion. To take a free expression example again, the U.S. First Amendment provides that "Congress shall make no law ... ab- ridging the freedom of speech, or the press".29 The U.S. Fourth Amendment provides, in somewhat the same spirit, that the right to be "secure... against unreasonable searches and seizures, shall not be violated". The United States due process right is similarly stated, not as an affirmative right to due process as such, but as a right not to be "deprive[d] ... of life, liberty, or property, without due process of law".30 And some U.S. rights that may appear, at first glance, to be affirmative in nature turn out, in fact, to have predominantly negative characteristics. The judicially developed right of indigents to have free counsel provided at trial or appeal in serious criminal cases, for example,3 may seem to be an affirmative entitlement, but that "entitlement"
2SeeMaherv. Roe, 432 U.S. 464 (1977); andHarris v. McRae, 448 U.S. 297,316 (1980) ("[A]lithough government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation").
29 Emphasis added.
"°Emphasis added.
3'See Gideon v. Wainwright, 372 U.S. 335 (1963); and Douglas v. California, 372 U.S.
353 (1963). Another U.S. right that has both negative and affirmative aspects is that of persons
CANADIAN CHARTER AND U.S. BILL OF RIGHTS
applies only when the individual is seeking to resist the imposition of gov- ernmentally imposed criminal sanctions; the right is really an aspect of the right not to be convicted of a crime without a fair trial. There is no equivalent United States constitutional right to the provision of free counsel for the purposes of asserting affirmative legal claims, such as tort, property or contract rights.3" Nor has the U.S. given constitutional status to affirmative entitlements to public assistance, unemployment compensation or free medical care - or even to free public education - although those rights are very often conferred by federal or state legislation.33
Will the individual constitutional rights newly created by the Canadian Charter be predominantly negative in nature, as is true under the U.S.
Constitution, or will the Charter be read as establishing some significant affirmative constitutional entitlements as well? By and large, the Charter's language is distinctly more affirmative in cast than is the corresponding U.S.
text. Unlike the clearly negative U.S. First Amendment, for example, the Charter provides that "[e]veryone has the ... freedom of... expression".' Similarly, one of the Charter's basic mobility rights provisions prescribes that "every citizen of Canada has the right to enter, remain in and leave
Canada".35
It is certainly conceivable that Canadian courts will, immediately or ultimately, read these or similar provisions as affording a basis for claims of constitutional entitlement to affirmative governmental assistance in some areas. But the more immediately likely reading of this sort of language, despite its affirmative cast, is that negative rights are all that are intended.
Note, in this connection, the Charter's use of the word "freedom" (rather than the word "opportunity", for example) to describe the constitutional entitle- ments of Canadians in the area of expression. A "freedom" suggests strongly that the entitlement is, in fact, merely one to be free from governmental
incarcerated for crime or committed for mental disease or retardation to safe and humane conditions of confinement. See Estelle v. Gamble, 429 U.S. 97 (1976); and Youngberg v.
Romeo, 457 U.S. 307 (1982).
12 Cf. United States v. Kras, 409 U.S. 434 (1973) (government need not waive filing fee for voluntary bankruptcy for one financially unable to pay that fee).
3Although there are generally no affirmative U.S. constitutional rights to welfare and similar government benefits, the U.S. equal protection clause often provides a basis for arguing that restrictions in benefit programs constitute unconstitutional classifications or discrimina- tions. Thus, a benefit program that excludes women may constitute constitutional gender discrimination, even though the entire program might constitutionally be abandoned. See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973). Since such programs are rarely aban- doned when unconstitutional discriminations are held to be present in them, a successful equal protection attack often has a practical effect similar to the recognition of an affirmative right.
'4Charter, subs. 2(b).
"'Charter, s. 6.
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prohibitions and restrictions (in the absence of a sufficiently strong gov- ernmental justification). Even the word "right" (used, for example, in the mobility rights provisions of the Charter) seems susceptible to a similar construction - that is, that the right to leave Canada is the right to be free from interference with such activity, not a right to affirmative governmental assistance for one who wishes to leave. If Canadian courts were to read provisions like these as establishing affirmative rights, they would have to decide which governmental units - federal, provincial or local - bore the constitutional obligation to provide the required assistance, and they would also have to decide what the required level of affirmative assistance should be. Would the right to affirmative assistance for politically expressive be- havior, for example, be a right to some minimum ability to communicate in the political arena (and how would that minimum be determined)? Would it be a right to equal ability to communicate (as compared with persons expressing contending views on the same issues) or perhaps a right to the assistance necessary to bring one to some "average" level of opportunity? The Charter provides little or no guidance in answering these questions, should answers become necessary. The desire of Canadian judges to avoid that necessity may provide a strong stimulus toward adopting a basically negative conception of most Charter rights.
There is, however, at least one provision of the Charter that seems, on the basis of its language, to demand at least very serious consideration as a possible source of affirmative constitutional entitlements. That provision is the first clause of s. 7 - the Charter provision closest in language to the well known U.S. "due process" clauses. The second clause of s. 7 provides, in parallel with the U.S. provisions, that individuals have the right not to be
deprived of life, liberty or security of the person "except in accordance with the principles of fundamental justice". That right is clearly one of the nega- tive, rather than affirmative, variety, being a right to resist governmental deprivations that are procedurally unjust.36 But what are we then to make of the first clause of s. 7, which provides that everyone, in addition, has the right
"to life, liberty and security of the person"? Unless this language merely duplicates the second clause (an interpretation quite at odds with the presence of two separate clauses and the use of the word "and" to connect them),
6The principal focus of this right is undoubtedly upon deprivations that take place through criminal and quasi-criminal proceedings. Specific limitations on criminal prosecutions consti- tute the remainder of the "Legal Rights" portion of the Charter, of which s. 7 is the first provision. Whether this part of s. 7 also gives rights to resist governmental deprivations through civil proceedings, and whether it can be read (as have the U.S. due process clauses) as requiring deprivations that are substantively as well as procedurally just, are questions that are treated in connection with the discussion of some specific Charter rights. See infra, Parts II(B) and II(C).
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something beyond a rule requiring fair procedures must be intended. What could that something be?
One possibility, and perhaps the most natural reading, is that the first clause of s. 7 means to impose substantive limits on governmental depriva- tions of life, liberty and personal security, just as the second clause imposes procedural limitations. That is, if a statute were to authorize conviction and imprisonment for a criminal offense without a fair trial, that would presum- ably violate the second clause of s. 7, whereas if the law were procedurally fair in operation but substantively unreasonable - if it, for example, crimi- nalized private behavior without an adequate justification for doing so in light of legitimate governmental concerns 37 - that might violate the first clause of s. 7. Read this way, the first clause of s. 7 would constitute a "substantive"
due process provision similar in nature to that employed from time to time by United States courts under the Fourteenth Amendment." It would still, however, be a right that is essentially negative in character.
But the first clause of s. 7 might also plausibly mean that everyone has the right to life, liberty and personal security in the sense that everyone has the constitutional right to demand some level of affirmative governmental assist- ance in protecting these vital personal interests. If so, this clause would establish a set of affirmative constitutional rights. Such rights, in their mildest shape, might take the form of constitutional requirements that government provide minimally adequate police protection, and that civil and criminal remedies for trespass to person, and perhaps to property, also be available.
Recognition of such constitutional rights would probably not impose any obligations on government in Canada that it does not already seek to meet, although it would certainly provide a basis for allegations that existing protections are not, in fact, adequate in some particular geographical or subject-matter areas. Recognition of such rights might perhaps also raise federalism issues regarding which governmental unit is to bear particular constitutional obligations.39
Broader forms of affirmative s. 7 rights to governmental assistance in protecting life, liberty and security of the person would have a greater potential impact. If there are such affirmative rights, it would not, for example, be wholly implausible to argue that the required protection includes
37As, for example, a law criminalizing the use of contraceptives by married couples. See Griswold v. Connecticut, supra, note 25, striking down such a state statute.
8U.S. "substantive" due process is discussed infra, Part II(C).
'9Subgection 32(1) of the Charter would seem relevant in allocating these affirmative governmental obligations, should they be found to exist. That section applies the Charter to the federal and provincial governments "in respect of all matters within [their respective] author- it[ies]".
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not only protection against criminal or tortious deprivations by other private individuals, but also governmental assistance in maintaining life, liberty and security against the ravages and demands of nature. The Charter might thus require governmental public assistance programs providing the food, shelter and medical care necessary to sustain life, health and a minimally adequate quality of life. United States courts, as noted above, have not similarly constitutionalized rights to welfare or public assistance, but the U.S. constitu- tional text has no peg as convenient as s. 7 upon which to hang such a set of affirmative rights. If Canadian courts do enter this area, existing public assistance programs may, in general, prove adequate to pass constitutional muster, although litigation would certainly be possible concerning particular applications of these programs, or allegedly unconstitutional exclusions from them. Lurking behind such a set of rights would be knotty problems regarding what constitutes a constitutionally acceptable minimum level of assistance in various areas, whether lack of governmental resources can be invoked as justification for failing to meet those levels, and whether the obligations are
imposed upon the federal or provincial governments.40
B. The Requirement of Governmental Action
Constitutional rights under the United States Constitution are, with one historically important exception, rights to be free from governmental (or governmentally related) interferences with constitutionally protected activ- ity. Purely private deprivations of life, liberty or property, such as murder, kidnapping or larceny, are illegal or criminal under state or federal law, but they are not unconstitutional, nor are private searches or seizures (such as burglaries), private interferences with freedom of speech or freedom of religion, or private racial or gender discriminations.4' The prominent excep-
0 On the latter issue, see ibid. There are a few otherrespects in which the Charter may create rights that are primarily affirmative in character. Subsection 4(1) of the Charter requires federal and provincial parliamentary elections every five years (subject to the limits of subs.
4(2)); s. 5 requires legislative sessions at least once a year; and s. 3 confers affirmative rights to vote in parliamentary elections and to stand for election. Some aspects of the official languages provisions (ss 16 to 22) may also be viewed as creating affirmative rights in that they require the provision of bilingual governmental services. (These provisions, however, can perhaps also be seen as "negative" prohibitions upon governmental discriminations not otherwise covered by the equality rights provision of Charters. 15.) Finally, it seems possible to read the Charter section dealing with minority language educational rights (s. 23) as not only prohibiting unequal treatment for language minorities in certain circumstances, but as also imposing an affirmative Charter requirement that the relevant governmental unit provide some minimum level of "primary and secondary school instruction" for all children.
11 With regard to Fourteenth Amendment rights, see, e.g., Civil Rights Cases, 109 U.S. 3, 11 (1883) ("It is State action of a particular character that is prohibited. Individual invasion of [Vol. 28
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tion to this rule is the Thirteenth Amendment's prohibition upon slavery or involuntary servitude. This prohibition applies to private, as well as to governmental behavior.2
Although the general doctrine that U.S. constitutional rights apply only against governmental action is a firmly established one, the question of what action should be considered to be "governmental" has produced - and continues to produce - a substantial amount of difficult litigation. It is clear that "governmental action" for purposes of the doctrine includes not only formal federal, state and local legislation, but also the regulations, internal policies and individual official activities of government agencies, officials and employees. It is also clear that governmental action is present even when such official individual behavior is actually prohibited by applicable legisla- tion. Thus, a state police officer in the U.S. acts as the government for the purposes of this doctrine when he conducts an unreasonable search and seizure in the course of an official criminal investigation even when, in doing so, the officer violates state law as well as the standards of the Fourth and Fourteenth Amendments.43 Moreover, private citizens may violate the U.S.
Constitution when they conspire in unconstitutional behavior by government
individual rights is not the subject-matter of the amendment"). The proposed Equal Rights Amendment would also contain an express governmental action limitation, applying to gender discriminations "by the United States or by any State". Similarly, it has been clearly understood in the U.S. that the entire original 1791 Bill of Rights was intended only as a limitation on governmental action (initially only federal governmental action), despite the fact that this limitation is not made explicit in every Amendment. See Barron v. The Mayor and City Council of Baltimore, supra, note 5.
4Thus, the Thirteenth Amendment "is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States". CivilRights Cases, ibid., 20. See also Jones v. AlfredH.
Mayer Co., 392 U.S. 409 (1968).
Although private invasions of rights do not ordinarily violate the U.S. Constitution, the U.S. Congress may nevertheless have constitutional power to prohibit such invasions. See, for example, the Civil Rights Act of 1964, P.L. 88-352 (prohibiting racial and gender discrimina- tion in private employment and racial discrimination in private hotels, restaurants and thea- ters), and the federal Housing and Urban Development Act of 1968, P.L. 90-448 (prohibiting race and gender discrimination in the sale or rental of private housing). The power of Congress to enact such legislation is ordinarily found in the federal power to regulate matters that affect interstate commerce. See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964). Where racial discrimination is involved, such legislation may also rest upon Congress' explicit power to
"enforce" the prohibitions of the Thirteenth Amendment, the theory being that private racial discrimination, while not constituting unconstitutional slavery as such, is nevertheless a
"badge or incident" of slavery remediable by federal legislation. See Jones v. AlfredH. Mayer Co., cited immediately above. U.S. states may (like the Canadian provinces) also choose to enact legislation protecting basic civil rights from private interference (so long as that legisla- tion does not conflict with valid federal legislation on the same subject).
4 3See, e.g., Monroe v. Pape, 365 U.S. 167 (1961).
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officials,44 or perhaps even when they are encouraged or required by the government to take actions that the government itself could not constitutional- ly undertake.41
Most significantly, action in the United States that is completely non- governmental in the formal sense - for example, the decisions or activities of a private company or corporation - may nevertheless be treated as "gov- ernmental" action if the private entity is deemed to be performing a peculiarly
"public" function, or if the state is sufficiently "involved" with, or has a sufficient nexus to, the private behavior. A privately owned "company town"
was held by the U.S. Supreme Court to have engaged in constitutionally prohibited "governmental" action when it decided to exclude religious evangelists from the town,46 and a privately owned restaurant that leased space in a state owned parking garage was held by the Court to have engaged in constitutionally prohibited racial discrimination when it pursued its own policy of refusing to serve black customers.47 In what is perhaps the U.S.
Supreme Court's most famous case in this area, it held that a state court could not constitutionally enforce a private racially restrictive land covenant against a black home buyer who had arranged to purchase property subject to the covenant. The Court decided that, although "the [private] restrictive agree- ments standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment", the State nevertheless violated the equal protection clause by granting judicial enforcement of the restrictive agreements.48
The governmental action doctrine has its limits, however difficult it may be to locate them in particular cases. It has always been clear, for example, that private conduct does not become governmental simply because a state might have prohibited the behavior in question, but has chosen not to do so. It has also been established for many years that privately owned inns, res- taurants or public conveyances are not governmental merely because of their
"See, e.g., United States v. Guest, supra, note 19.
45See, e.g., Reitman v. Mulkey, 387 U.S. 369 (1967).
"See, e.g., Marsh v. Alabama, 326 U.S. 501 (1946).
4'Burton v. Wilmington Parking Authority, 365 U.S. 725 (1961).
"Shelley v. Kraemer, 334 U.S. 1, 13 (1948). There was no difficulty in finding state
"action" in Shelley; such action was clearly present in the state court's enforcement of the private restrictive covenant. The discriminatory decision, however, had been a purely private one. The precise contours of the Shelley decision have never been clarified adequately. The Supreme Court, for example, has not held that all state enforcement of private discriminatory decisions amounts to unconstitutional governmental action. See, e.g., Bell v. Maryland, 378 U.S. 226 (1964) (where the majority of the Court declined to apply Shelley where blacks were prosecuted for trespass for a "sit-in" at a private restaurant that refused them service because of their race). See also Evans v. Abney, 396 U.S. 435 (1970).
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